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UPDATE: Donald Trump will be prohibited from incendiary attacks on Special Counsel Jack Smith, his staff and witnesses and potential witnesses in his election conspiracy case, a federal judge said on Monday.
Judge Tanya Chutkan said that she would not allow Trump — or anyone else involved in the case — to launch a “smear campaign” to influence the case.
“No other criminal defendant would be allowed to do so,” she said.
Trump’s lead attorney John Lauro said that the court would be violating the former president’s First Amendment rights, as political speech, carried out in the course of a presidential campaign, is given a high standard of protection.
But the special counsel said that what Trump was doing was using his presidential campaign as a way to try the case in the court of public opinion, in a way that would intimidate witnesses and prejudice potential jurors.
During a two-hour hearing, the judge went through a number of Trump’s attacks on the case, potential witnesses and even herself, noting that they continued until as recently as Sunday evening. She several times referred to Trump’s post that called the District of Columbia “rat infested,” which prosecutors say was part of an effort to taint the jury pool. She also went through a series of hypotheticals, including what should be done if Trump were to declare that his former Attorney General Bill Barr, a potential witness, “should be executed for his many treasonous acts.”
Lauro said, “I will advise my client not to make a statement like that.” But he said that he does not think such a statement would be a threat.
In fact, Trump did suggest in a Truth Social post that Mark Milley, the former chairman of the Joint Chiefs of Staff, be “executed” for engaging in treasonous acts. Lauro denied that the former president was actually suggesting such punishment, but merely was pointing out how things were done in the past.
Chutkan, though, appeared to be not buying it. “To write in all caps DEATH about a potential witness in this case? Doesn’t that go too far?”
The judge also said that she was “deeply disturbed” by Trump’s post attacking a judge’s staffer in his New York back fraud case. Even though it was in a different proceeding, she suggested that it was telling because Trump posted the attack even after federal prosecutors filed a motion for a partial gag order in the D.C. case. “Such behavior puts court staff at tremendous risk of harassment,” she said. The judge in the New York case, Arthur Engoron, issued a gag order on Trump and anyone else that restricts them from attacking his staff.
Lauro tried to argue that the restrictions that Chutkan has already put in place “is working.” She laughed. “I am going to have to take issue with that.”
PREVIOUSLY: Donald Trump may be ordered to limit his comments about the federal criminal election conspiracy charges he is facing, as a federal judge on Monday weighed restrictions on what he can say about the case.
Prosecutors are seeking an order which they say will balance Trump’s “free speech right with the court’s responsibility to ensure a fair trial free from outside influence.”
Trump was not present for the hearing, but one of his staunchest supporters, Rep. Marjorie Taylor Greene (R-GA), was spotted in the courthouse beforehand. She wrote that she was there “as a member of the Oversight Committee to see if Judge Chutkan is really going to destroy the 1st amendment – free speech rights of former President Trump.”
Special Counsel Jack Smith’s team cited, among other things, Trump’s social media posts, including attacks on U.S. District Judge Tanya Chutkan. Trump also has repeatedly called Smith “deranged,” and his office cited a report calling a prosecutor “really corrupt!” He also has attacked former Vice President Mike Pence and other witnesses including former Attorney General William Barr and Georgia Secretary of State Brad Raffensperger. Smith’s office also pointed to a Trump Truth Social post that Gen. Mark Milley, who recently retired as chairman of the Joint Chiefs of Staff, committed treason, with the suggestion that he should be tried for treason and executed.
In advance of the hearing, Trump went off on Truth Social, again attacking Smith and Chutkan and writing, “These political Hacks and Thugs are destroying our Country.”
Trump’s legal team wrote in a filing that the witnesses in the case embrace limelight and, essentially, invite the attacks from the former president. In response to the government’s request for a limited gag order, they wrote that “neither the prosecution nor the Court are reluctant to proceed with this case, and none of the public figures the prosecution references in its Motion have refused to participate, either. Just the opposite, these individuals appear to relish the notoriety they have gained through their proximity to President Trump, variously writing books about their experiences, appearing for interviews with national media, and even running for president in their own right.” They added that “the prosecution does not identify a single potential juror who has allegedly become partial against the government due to President Trump’s statements.”
Prosecutors want an order “that pose a substantial likelihood of material prejudice to this case.” They say that the statements include those “regarding the identity, testimony or credibility of prospective witnesses, and statements that are disparaging and inflammatory, or intimidating.”
Earlier this month, Trump was ordered by a New York state judge overseeing his civil fraud case to stop making personal attacks on his staff.
Trump has pleased not guilty to four counts on charges related to his efforts to remain in power in the aftermath of the 2020 presidential election. Chutkan has scheduled the trial to start on March 4, one day before Super Tuesday.
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